President Michael D Higgins was within his rights to refuse an invitation to attend a commemoration event in Armagh, constitutional experts have said.
Former Taoiseach John Bruton alleged that President Higgins was in breach of Article 13:9 of the Constitution which states that “the powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government”.
Minister for Foreign Affairs Simon Coveney confirmed that while officials had discussed the invitation during routine meetings, President Higgins did not seek its advice the Government's advice before making the decision not to attend the event in Armagh on October 21st, which Queen Elizabeth II has been invited to attend, nor was any issued to him.
Mr Bruton suggested that the President's decision not to go an event of this nature "runs against the Good Friday Agreement".
However, the suggestion has been denied by President Michael D Higgins who accused Mr Bruton of being wrong in his interpretation of the Constitution”.
"I'm the President of Ireland, that's the constitutional position, the legal position," he said and called on the former taoiseach to withdraw his remarks.
Waterford Institute of Technology law lecturer Dr Jennifer Kavanagh said a president is constrained by what he or she can say in a message to the State under the constitution or a joint address to the Houses of the Oireachtas.
A president is also constrained in his or her ability to leave the State and the Government can say no to that. This happened on one occasion when then taoiseach Charles Haughey prevented president Mary Robinson from leaving the State to deliver the Dimbleby lecture for the BBC in April 1990.
Other than that the President has discretion as to what he can or cannot do or say.
‘Element of discretion’
“The President is asked to go to so many things and he can’t go to everything. There has to be an element of discretion allowed on the diary. He wouldn’t be under Government or Council of State control on that. He is perfectly entitled to say no ‘I am not going’,” she explained.
“It is laid out pretty clearly in the constitution what the President has to contact the Government about. This is not one of those situations.”
Professor in law at Trinity College Dublin Oran Doyle said Mr Bruton's analysis of the constitutional position of the President is incorrect.
The president has to consult the government on appointing judges to the Supreme Court and recognising ambassadors.
“The president also has developed an informal role of participating in civil society and speaking about things,” he explained.
“It has been excepted that the President doesn’t need the permission of the Government in relation to that. He does need the permission of the Government to leave the State, but he doesn’t need the permission of the Government not to leave the State.
“How workable would it be if the President needed permission not to do things? He has made a judgment call as to whether or not he should go. We have elected him as President and he has made his call on that.”
NUI Galway Professor of Law Donncha O'Connell said Mr Bruton was "clearly wrong" in his interpretation of the constitution.
“His literalist hot take on Article 13 would appear to suggest that the President is some kind of puppet whose strings are pulled by Government. This is patently nonsensical and not even remotely connected to contemporary constitutional reality,” he said.
UCC Professor of Law Conor O’Mahony tweeted that he found it “tiresome that every minor controversy about something the President did or said is portrayed as some kind of constitutional issue.
“That’s very rarely the case in reality. Disagree with the president’s stance if you will, but please leave the Constitution out of it.”